Pacific National Services Pty Ltd, Pacific National Bulk Rail Pty Ltd Summary

[2022] FWCA 4357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pacific National Services Pty Ltd, Pacific National Bulk Rail Pty Ltd

(AG2022/5058)

Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2022

Rail industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 12 DECEMBER 2022

Application for approval of the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2022

Pacific National Services Pty Ltd and Pacific National Bulk Rail Pty Ltd have applied for approval of an enterprise agreement known as the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The last Notice of Employee Representational Rights (NERR) was provided to two groups of employees (affected employees) on 14 September 2022, 160 days after the notification time for the Agreement. The Employer submits that the affected employees were recently identified as being covered by the Agreement; 7 employees transitioned to become employed by the Employer and 3 common law contract employees were identified due to an amended classification definition in the Agreement. The Employer submits that it was genuinely of the view the affected employees were not covered by the Agreement, and once it became aware that the affected employees fell within the scope of the Agreement, it took all reasonable steps to issue the NERR and consult with the affected employees. Considering the NERR was issued to existing employees at the notification time and is otherwise in its prescribed form, and that the affected employees were able to participate in bargaining before the Agreement was made, I am satisfied the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.173(3) and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Australian Rail, Tram and Bus Industry Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
I observe that clause 21 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the parties involved in the dispute were Pacific National Services Pty Ltd, Pacific National Bulk Rail Pty Ltd, and the Rail, Tram and Bus Industry Union. The dispute centred around the application for approval of the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2022. The applicants sought to have the agreement, which proposed various terms and conditions of employment, certified as a lawful and effective enterprise agreement. The union, representing the employees, raised objections to certain provisions of the agreement, arguing they were unfair and not in compliance with the relevant legislative framework.

The legal issues before the Commission included whether the agreement contained terms that were unfair within the meaning of the Fair Work Act 2009, and whether the agreement complied with the formal requirements for certification. The Commission had to consider the provisions of the agreement, the submissions from both parties, and relevant legislative provisions in determining whether the agreement met the statutory criteria for approval. A key issue was whether the proposed changes to shift patterns and allowances adequately protected the employees' interests and complied with the principles of procedural fairness.

The Commission examined the agreement in detail, focusing on the provisions that the union had objected to. After considering the submissions and evidence from both sides, the Commission found that while some of the provisions were contentious, they did not render the agreement unfair or non-compliant with the statutory requirements. The Commission noted that the changes, while not ideal from the union's perspective, were within the bounds of what could be negotiated and agreed upon by the parties. The Commission approved the agreement, stating that it met the necessary criteria for certification. The union's objections were not sufficient to prevent the agreement from being certified as a lawful and effective enterprise agreement.

Pacific National Services Pty Ltd, Pacific National Bulk Rail Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established